Can I sue for malpractice if I signed a waiver? Whether you can file a medical malpractice lawsuit after signing a waiver depends on the language and terms found in the waiver. Before signing a waiver, it’s important to review and understand the terms and informed consent.
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If you suffer illness or injury from medical malpractice after signing an Illinois waiver, call Ankin medical malpractice lawyers for a free case review at 312-600-0000.
What Is the Role of Informed Consent?
Consent forms are commonly used in hospitals, emergency rooms, outpatient clinics, and urgent care centers. The role of informed consent forms is to present information in writing to patients who are receiving medical treatments, especially any type of surgical procedure.
A standard informed consent form or waiver outlines what the surgery will entail, inherent risks of the procedure, and the patient’s financial responsibilities for the procedure. Most consent forms also contain a statement that says the patient can not sue the doctor or medical facility if the patient suffers an injury as a direct result of one of the stated risks listed in the consent form.
Medical waivers can be complicated and confusing for patients due to medical terms and legal jargon that is difficult to understand. In emergency medical situations, patients are often sedated and in pain, so they can’t even comprehend what they are signing. For instance, a patient admitted to a hospital for emergency heart surgery may be informed that complications include physical injuries, temporary or permanent disabilities, or death, but most patients will still sign the waiver. In urgent medical cases, inherent surgical risks are usually obvious, but surgery may be necessary to save the patient’s life.
Within the United States, definitions of informed consent may vary, and the standard required is generally determined by the state. As such, state laws may determine how informed consent impacts medical malpractice lawsuits. Legal rights after signing a waiver may be different from state to state.
In Illinois, waivers are not automatically enforceable. Signing a waiver does not mean that the waiver is enforceable, even if you agreed to its terms when you signed it. Medical consent forms and waivers often rely on the decision-making capacity of a patient, which includes four important factors:
1. Choice – The mental ability to make an informed choice based on the medical information provided to the patient.
2. Understanding – The mental capacity and reasoning skills to understand the relevant facts about the medical decision.
3. Appreciation – The ability of the patient to give informed consent with concern and understanding of the impact that the relevant facts will have upon oneself.
4. Reasoning – The mental acuity and reasoning skills to make the relevant inferences from the information provided and a reasonable understanding of the decision at hand.
Impairments to reasoning and judgment that may preclude informed consent include intellectual or emotional immaturity, high levels of stress such as post-traumatic stress disorder, severe intellectual disability, severe mental disorders, severe sleep deprivation, dementia, coma, and intoxication.
Are There Exceptions to Waiver Enforceability?
In Illinois, medical liability waivers must meet standards to be enforceable. Waivers must be written with clear language that patients can understand, correct facts about the patient’s medical condition, and accurate patient risk assessments. Without these factors, liable waivers may not be legally enforceable.
Lack of Clear, Concise, and Explicit Language
If you sign a waiver before a medical or surgical procedure, your doctor must explain the procedure, possible problems, and detailed risks. The waiver you sign may not meet these requirements. For example, the waiver may contain technical or ambiguous language that’s impossible to comprehend, the waiver may not include all risks, or the waiver may not outline detailed risks for common types of surgical errors.
Lack of Informed Consent
If your doctor or hospital does not provide an opportunity to give informed consent, you have the legal right to file a medical malpractice lawsuit for illness or injury caused by the procedure. The waiver you signed may be enforceable, but it may fail to include a well-known risk in the list for your specific procedure. If you suffer complications due to the risk that was not included, you can claim that you did not give your informed consent. A waiver does not guarantee informed consent.
When you’re given a medical waiver to sign before a surgical procedure, your doctor, nurse, or hospital should fully explain the health risks associated with that procedure and give you alternative choices. If you signed the waiver but were not given adequate information regarding your treatment and suffered injuries, you can argue that your consent was uninformed. This is grounds for a medical malpractice lawsuit.
When signing a medical waiver, a patient should have a clear mind and understand the waiver. Patients should not be tricked, pressured, forced, or mentally incompetent. Patients should sign the waiver under free will unless an emergency medical procedure is necessary to save a life.
Gross Negligence
When a patient signs an informed consent waiver, medical professionals and hospitals still have a legal obligation to provide an acceptable standard of care to the patient. A waiver does not protect against wrongdoing or patient harm caused by negligent actions and medical errors. Gross negligence occurs when a medical professional acts in a reckless manner. Acts of gross negligence include:
- Ignoring a patient’s symptoms
- Failure to diagnose a patient’s medical condition
- Performing surgery on the wrong body part or patient
- Performing surgery with unclean or unsterilized instruments
- Leaving surgical tools, gauze, or packing inside the patient
- Operating on a patient while under the influence of alcohol or drugs
In healthcare, the above events are referred to as “never events” because they are preventable medical errors that should never happen. According to healthcare statistics in the United States, over 4,000 surgical never-event claims occur every year. Never events that occur most frequently include performing the wrong procedure, operating on the wrong site, operating on the wrong patient, and leaving foreign matter inside patients.
Steps to Take if You Have a Malpractice Case
To file a medical malpractice lawsuit, you must first show proof that a medical professional committed negligent or harmful actions that caused you to suffer harm or injury. To sue for medical malpractice, you must establish the existence of four important conditions:
An Established Doctor/Patient Relationship
As the patient, you must prove that an established doctor/patient relationship existed during the time of your injury. You must prove that you were under the care of the doctor in question and that the doctor agreed to treat you for a medical condition. Proof can be shown through medical records that establish doctor’s visits, treatments for your condition, and prescription medications.
A Violation of the Standard of Care
To have a substantial case, you must prove that your doctor violated the standard of care by acting in a negligent or reckless manner. The accepted standard of care in medicine is used as an important guideline for patient care. In medical malpractice lawsuits, expert witnesses are often called to testify during the trial to show that another well-qualified doctor would have acted differently under the same circumstances.
Harm or Injury Resulted From the Doctor’s Actions
In a medical malpractice case, the patient must prove that his or her illness, injury, disability, or death is directly linked to the doctor’s negligent actions. In some cases, this may be difficult to prove when the patient is already suffering from an existing illness, injury, or medical condition. If the patient has an existing condition unrelated to the doctor’s actions, a medical malpractice lawyer can investigate further to prove medical malpractice.
The Patient Sustained Damages
A valid medical malpractice lawsuit requires proof that the patient sustained damages as the result of his or her illness or injury. Proof of damages entitles the patient to recover financial losses for medical expenses, lost income, pain and suffering, temporary or permanent disability, and the loss of normal enjoyment of life.
How Much Can I Recover for Damages?
When medical malpractice is proven, the patient has a legal right to file a medical malpractice lawsuit to recover financial damages. In Illinois, there is currently no cap on medical malpractice claims.
Before 2010, Illinois did impose damage caps on non-economic damages. Victims could only claim up to $500,000 in damages against a medical professional and up to $1 million in damages against a hospital or medical facility. In lawsuits filed after 2010, victims have the right to recover compensation for the full value of both economic and non-economic damages.If you suspect that medical malpractice caused your injury, contact us for a free case review. Our Chicago medical malpractice lawyers can help you recover damages.
